Lessons From A Crumbling Spillway

People have been holding their breath and keeping their fingers crossed out in northern California.  Thousands of residents from a number of communities have been evacuated after a spillway from the massive Oroville dam was determined to be on the brink of failure.  As of early this morning, fortunately, it looks like the spillway will hold.

oroville-dam-side-view-associated-press-640x480The Oroville Dam story is an interesting one.  California has been struggling with drought conditions for years, but then recently got hit with lots of rain and snow that has filled its reservoirs and allowed officials to declare that drought conditions are over.  Now, though, the spillway failure raises questions about whether the state’s water control infrastructure is up to the task of dealing with water flow in non-drought conditions.

It’s a story that you probably could write about much of America’s infrastructure from the east coast to the west coast, and all points in between.  As you drive under bridges that look to be cracked and crumbling, with chunks of concrete missing and rebar exposed, travel through airports that are beat up and obviously overtaxed, and walk past retaining walls that are bowed out, you wonder about whether the folks in charge are paying much attention to the basics.  And, of course, that doesn’t even begin to address “hidden” infrastructure, like dams and reservoirs, sewer piping and spillways, electrical grids and stormwater drains, that are underground or removed from population centers.  There is a lingering sense that the concrete, steel, and piping that holds the country up has been neglected — perhaps because bridges, tunnels, dams, and reservoirs don’t vote, lobby legislators, or fill council chambers, demanding their share of tax dollars.

President Trump has talked about addressing these infrastructure issues — such as our “third world” airports — and it’s an issue about which there seems to be some consensus among both Democrats and Republicans in Washington, D.C.  But there’s more to it than that.  Not every bridge or reservoir is a federal issue that requires federal tax dollars or federal bureaucrats issuing approvals.  Local and state governmental officials need to recognize that they have responsibility, too, and they can’t continue to shortchange maintenance and improvement of core infrastructure.  Rather than just holding their hands out to Uncle Sam, they need to look to their own budgets and tax revenues to fund the repair and refurbishment effort, too.

Perhaps the Oroville Dam story will get people to start paying attention to what they should have been paying attention to all along.

Redefining “Presidential,” And Reconsidering Overreaction

In some way, Donald Trump is like the weather:  you’d like to ignore him, but you just can’t.  He’s like that blustering, loud summer thunderstorm that blows in on the day you’ve scheduled an outdoor party and requires everybody to change their plans whether they want to or not.

It’s pretty obvious, after only a few days in office, that the era of Trump is going to change how we look at our presidents, and what we consider to be “presidential” behavior.  In recent decades, we’ve become used to our presidents maintaining a certain public decorum and discretion.  Sure, there have been a few exceptions in the sexual dalliance department, but for the most part our modern presidents have tried to take the personal high road.  They leave the attacks to their minions and strive to stay above the fray.

Imacon Color ScannerNot President Trump.  He’s down there himself, throwing punches via Twitter.  His most recent activities in this regard involve lashing out at the federal district court judge that issued a temporary restraining order against Trump’s immigration executive order.  Trump referred to Judge James Robart as a “so-called judge” and said his ruling was ridiculous.  Senate Minority Leader Chuck Schumer immediately attacked Trump, saying his comment “shows a disdain for an independent judiciary that doesn’t always bend to his wishes and a continued lack of respect for the Constitution.”

I’ve got mixed feelings about all of this.  I personally prefer the more genteel, above-the-fray presidential model; I think it’s more fitting for a great nation that seeks to inspire others and lead by example.  I wish our President wouldn’t “tweet.”  But I also recognize that American presidents haven’t always been that way.  The behavior of presidents of the 1800s — think Andrew Jackson, for example — was a lot more bare-knuckled than what has come since.

I also think there’s danger for the Democrats in repeatedly overreacting to Trump.  If you argue that everything Trump does is the most outrageous travesty in the history of the republic (and that’s pretty much what you get from the Democrats these days) you ultimately are going to be viewed as the boy who cried wolf — which means the townspeople aren’t going to pay attention when you really want them to listen.  And in this case the reality is that, since the very early days of our country, elected politicians have been strongly criticizing judges.  Andrew Jackson famously declined to enforce a Supreme Court ruling, and Abraham Lincoln harshly lambasted the Supreme Court, and its Chief Justice, after the Dred Scott decision.  More recently, the rulings of the Warren Court became a political lightning rod during the ’60s, and President Obama saw fit to directly criticize the current Supreme Court, sitting right in front of him during a State of the Union speech, about their Citizens United ruling.

So Trump’s reference to a “so-called judge” really isn’t that big a deal when viewed in the historical context.  What’s weird about it is that it comes out in tweets — which makes it seem less presidential and, because it’s a tweet, less serious.  When Trump has these little outbursts I think if the Democrats simply shook their heads and said that what Trump is doing is “regrettable,” without acting like his every move threatens to bring down the Constitution, Trump’s Twitter act will wear thin on its own.

But they can’t help themselves right now, and neither can Trump.  So we’re going to have to ride out a few of those thunderstorms.

College Crack-Up

There was rioting on the University of California campus at Berkeley earlier this week — the worst kind of rioting.

screen-shot-2017-02-02-at-10-43-55-am-1024x682A protest was planned to try to stop a speech that was to be given by a conservative figure named Milo Yiannopoulos, and according to the University, “150 masked agitators” came onto campus to turn the protest into a riot.  During the ensuing melee, two UC Berkeley students who happened to be Republicans were attacked while giving an interview, a suit-wearing student was pepper-sprayed and beaten with a rod because a protester through he “looked like a Nazi,” the mob threw Molotov cocktails and commercial grade fireworks at police and smashed windows, and the riot ultimately caused $100,000 worth of damage to the campus.  Oh, yeah — the college cancelled the speech by Yiannopoulos and spirited him off campus “amid the violence and destruction of property and out of concern for public safety.”

So, the protest that turned into a riot achieved its ultimate goal of preventing a speech by a right-wing guy who consciously strives to be provocative and whose perspective many people find vile and hateful.  It’s not clear whether all of the protesters/rioters were there out of concern about Yiannopoulos’ views — UC administrators believe that some of the people who came to the protest from off campus were with a local anarchist group called “Black Bloc” that has been causing problems in Oakland for years and that may have just been looking for an excuse to pelt police and bust some glass — but the outcome is not a good one for those who believe in free speech, even if the speech is by someone whose views are appalling.  According to a piece written by a UC student, some of the students on campus are wondering whether the violence was justified because a peaceful protest would not have succeeded in preventing Yiannopoulos’ speech.   If that view is widespread, the Berkeley incident sends exactly the wrong message:  violence works if you are looking to prevent speech by someone you oppose.  That attitude should send a shudder through the administrative offices of colleges across the land.

I think UC-Berkeley botched this whole process.  It’s time for colleges to get back to being places that tolerate all kinds of speech and that recognize that the response to disagreeable speech — even the most vile, toxic, hateful speech — is not riots, but more speech in opposition.  Rather than breaking windows, how about “teach-ins” by professors who disagree with Yiannopoulos’ views and can respond to his remarks and his approach, after Yiannopoulos is allowed to say whatever he intends to say?  That’s what would have happened on the OSU campus when I was a student back in the ’70s.

Riots should never be tolerated, but riots that are a conscious effort to quash free speech are especially wrong.  Colleges need to stiffen their spines and make sure that the rights of all speakers are respected and protected.

Looking To Fill The “Stolen Seat”

Last night President Trump nominated Neil Gorsuch, a judge on the federal 10th Circuit Court of Appeals, to fill the vacant seat on the United States Supreme Court.  His formal nomination triggers the start of what will undoubtedly be a bruising confirmation process, with some Democrats already promising to do everything they can to prevent seating Gorsuch on the high court.

US-POLITICS-COURT-NOMINATIONThere are three reasons for this.  First, the Supreme Court has assumed an increasingly important role in the American political process over the last 70 years, with people at all points on the political spectrum looking for the judiciary to recognize a new right, provide a remedy, issue an injunction, or overturn a statute or executive action.  The Supreme Court is the head of the judicial branch, and every year, the Court accepts and decides cases that require it to tackle difficult issues — some constitutional, some statutory, some procedural — that can have broad ramifications for people, businesses, the legal system, and how government works.

Second, as the importance of the Supreme Court has increased, the process for nominating, reviewing, and approving potential Supreme Court justices has changed.  Republicans blame Democrats for the growing politicization of the Supreme Court confirmation process, and Democrats blame Republicans, but no one doubts that we have moved into a new era of “extreme vetting.”  Nominees not only have their credentials, backgrounds, and prior opinions scrutinized for the tiniest kernel of a potential argument against nomination, but advocacy groups immediately declare sides and start their scorched-earth campaigns before the nomination speech is even completed.  Last night, only a few minutes after Gorsuch was nominated by President Trump, an anti-confirmation demonstration began on the Supreme Court steps, and opponents of the Gorsuch nomination appeared on the cable news shows, describing him in the darkest, most ominous terms imaginable.

And third, the atmosphere has become even more poisonous because the seat on the Supreme Court Gorsuch has been nominated to fill has been vacant for almost a full year, and the Republicans in the Senate refused to take any action on Merrick Garland, the jurist that President Obama nominated to fill that seat.  That’s why the New York Times, in an editorial today, calls the vacancy the “stolen seat” — reasoning that if the Senate had just acted properly last year, Garland would have been confirmed, and the balance of power on the Supreme Court would already be changed.  The Times editorial castigates the Senate Republicans for obstructionism and abuse of power in their treatment of the Garland nomination, but seems to also implicitly encourage — with a wink and a nod — Senate Democrats to respond to the Gorsuch nomination in kind.

So now we’ve got a Supreme Court nominee who has served on the federal appellate bench for 10 years, has all of the educational bona fides you would wish, and is classified by some as a “very conservative” judge.  I’m interested in seeing how the confirmation process plays out and what is brought out about Gorsuch’s background and judicial opinions — but that means the confirmation process has to actually start.  Here, too, as in other areas I’ve pointed out recently, Congress needs to do its job.  The Republicans need to shut up about the “nuclear option” that Harry Reid unwisely imposed, and the Democrats need to get over the Garland nomination inaction, and both sides need to acknowledge that the Supreme Court has nine seats that can only be filled if the Senate acts and start to address the Gorsuch nomination on its own merits.

One other thing:  as the current Supreme Court justices age, delay and inaction is not an option.  If we don’t get over this self-imposed roadblock to the proper functioning of our government, we might soon have another vacancy to fill, and another.  If the Republicans and Democrats don’t get over their political titting for tatting, we might end up with a gradually vanishing Supreme Court.

Our First “You’re Fired!”

Last night President Trump issued the first high-level “You’re fired!” of his new Administration.  It’s like The Apprentice all over again.

trump-scowlThe person being sacked was Sally Yates, who was serving as acting Attorney General prior to the confirmation of Trump’s selection, Alabama Senator Jeff Sessions.  An Obama appointee, Yates had issued an order to lawyers in the Justice Department instructing them not to make arguments defending Trump’s executive order on refugees and immigration.  Her order to the DOJ lawyers apparently was a unilateral decision, and it clearly wasn’t coordinated with the White House.  When the President learned of it he promptly dismissed Yates through a hand-delivered letter and replaced her with another acting AG, who immediately rescinded Yates’ decree and ordered DOJ lawyers to defend Trump’s immigration order.

In a letter, Yates stated that “[m]y responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts.”  The letter noted:  “In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” and concluded “[a]t present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”  The White House, for its part, said that Yates was sacked for “refusing to enforce a legal order designed to protect the citizens of the United States.”

We’re going to be seeing a lot of this, I’m afraid.  Trump is taking actions that are making significant changes and provoking significant opposition.  Yates is of course entitled to her opinion about his immigration order — but I think her appropriate course was not to unilaterally act to thwart the order, but rather to publicly and noisily resign rather than enforce the order.  That’s the course that Attorney General Elliott Richardson took when President Nixon fired Watergate special prosecutor Archibald Cox, and I think it is the right approach.

As for the President, I think he really had no choice but to fire Yates for her failure to follow the policy set by his Administration.  Trump clearly means to shake things up, and he’s going to encounter resistance in the sprawling federal bureaucracy.  If Trump hadn’t acted in the face of the first act of disobedience, he would have given a green light to the actions of other dissenters within the Executive Branch of the government and undercut his ability to make the changes he thinks voters elected him to make.

People serving in government have a right to their own views, and to act their conscience — but Presidents have a right to expect their policies to be followed and faithfully executed, unless and until other coordinate branches of government act to stop them, through court orders or new laws.  It’s how the checks and balances in our tripartite government is supposed to work.  We should all haul out our Civics textbooks — we’re going to be getting an ongoing refresher course with this new President.

Immigration Chaos

This weekend, we saw again what happens when the federal government acts on the basis of executive orders rather than statutes that proceed through Congress, are subject to hearings and debates before being approved by our elected representatives, and get signed into law by the President, as the Constitution contemplates.

ap-immigration-trump-cf-170126_12x5_1600Late Friday afternoon, President Trump issued an executive order on immigration.  Like many executive orders, this one features dense references to statutes and programs that makes it beyond the comprehension of normal Americans.  The order has multiple components, but the ones that had an immediate effect over the weekend indefinitely barred Syrian refugees from entering the United States, suspended all refugee admissions for 120 days to allow refugee vetting procedures to be reviewed, and blocked citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days.  (The last component has people talking about the Trump Administration imposing a “Muslim ban”; the Trump Administration denies that, noting that the seven countries listed were actually identified for special treatment by the Obama Administration and that many other Muslim-majority countries are not included on the list.)

The order was issued, and then . . . chaos reigned.  Were people with “green cards” — that is, permits that allow them to live and work permanently in the United States — subject, or not subject, to the bans?  First they apparently were, then the Trump Administration said they weren’t.  In the meantime, international airports and security officials struggled to figure out how they were supposed to implement the ban, unsuspecting travelers were left in limbo in airport concourses, lawyers filed lawsuits, different federal district courts issued different orders about different parts of the executive order, and now it’s not entirely clear who can or should be doing what, and for how long.  It’s to the point that, because a federal court ruling in Boston is different and perhaps broader than a federal court ruling in New York, immigration lawyers are encouraging international travelers to re-route through Boston’s Logan Airport, just in case.

All of this is aside from the merits of the executive order, which has been widely viewed, in the Unites States and abroad, as a sign that the country that features the welcoming Statue of Liberty on its eastern shore is now in the hands of paranoid xenophobes.  And the confusion about the terms and implementation of the executive order just make the black eye America has absorbed a little larger and a little darker.

It was clear that the Trump Administration was going to do something about immigration; it was one of Trump’s principal campaign themes, and so far he has acted on things pretty much like he said he would.  But it’s also another example of why government by far-reaching executive order is just bad policy, period — whether the executive orders are issued by the Obama Administration, the Trump Administration, or any other Administration.  We need to stop government by executive edict and administrative thunderbolt.  It’s time that Congress started to do its job.

Thin-Skinned

One of the most curious aspects of the first few days of the Trump Administration is the little dust-up about the size of the crowd at the new President’s inauguration.  Trump thinks the news media has intentionally underestimated the crowd to try to make him look less popular than he really is; the news media points to photos of the National Mall that indicate that the inaugural crowd was not as big as the crowd for the Women’s March the next day or the crowd for the Obama inauguration in 2009.

It’s a weird story, because no one really should care about the size of the crowd.  It’s an insignificant fact that has no lasting impact on the new President or the country.  No historian includes size of inaugural crowd as one of the factors used in ranking our Presidents from best to worst.

So why does Trump care about something that would otherwise be quickly and forever flushed down the memory hole?  I think it’s because he’s someone who’s convinced of his popularity — he just won the election, after all — and he’s a bit thin-skinned about suggestions that he’s not as popular as he thinks he is.  That’s why he’s struggling to let it go, and also keeps bringing up the claim that he would have won the overall popular vote if millions of purportedly illegal voters hadn’t cast their ballots.  Trump denies that he’s thin-skinned, of course, but the reaction to the inaugural crowd reports make it difficult to agree with his self-assessment.

I think this is one of the areas where Trump’s lack of a political career has had a real effect.  Most career politicians have gotten used to absorbing the slings and arrows of outrageous statements after a few years in the political arena.  By the time they get to the point of running for president, they’ve developed an outer coating tougher than a rhinoceros hide that allows them to slough off criticism.  But Trump hasn’t had that experience, and hasn’t developed that protective layer that allows him to ignore the slights and the barbs.

Trump presumably will develop a thick skin soon; it’s hard to imagine you could be President for long without it.  The concern for me is whether political opponents or foreign leaders will see Trump’s apparent hypersensitivity as an opportunity to be exploited:  can they goad our touchy President into taking a reckless step by playing to his pride and ego?  That’s why I’m hoping Mr. Trump stops worrying about crowd size — at least publicly — and starts to show that he’s not troubled by the little things.